Corrected Joint Brief

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DENNIS J. HERRERA, State Bar #139669

City Attorney
ANDREA RUIZ-ESQUIDE, State Bar #233731
VICTORIA WONG, State Bar #214289
Deputy City Attorneys
City Hall, Room 234
1 Dr. Carlton B. Goodlett Place
San Francisco, California 94102-4682
Telephone:
(415) 554-4700
Facsimile:
(415) 554-4757
E-Mail:
andrea.ruiz-esquide@sfgov.org
Attorneys for Respondents
CITY AND COUNTY OF SAN FRANCISCO, ET AL.
DANIEL FRATTIN, State Bar #248373
REUBEN, JUNIUS & ROSE, LLP
One Bush Street, Suite 600
San Francisco, CA 94104
Telephone: (415) 567-9000
Facsimile: (415) 399-9480
E-Mail: dfrattin@reubenlaw.com
Attorneys for Real Parties in Interest
JEREMY RICKS, TRACY KIRKHAM, and JOE COOPER
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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UNLIMITED JURISDICTION
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PROTECT TELEGRAPH HILL, an

unincorporated association;
Petitioner,
vs.
CITY AND COUNTY OF SAN
FRANCISCO; BOARD OF SUPERVISORS
OF THE CITY AND COUNTY OF SAN
FRANCISCO, and Does 1 to 5;
Respondents.
Case No. CPF 14-514060

CORRECTED JOINT BRIEF OF CITY AND
COUNTY OF SAN FRANCISCO AND REAL
PARTIES IN INTEREST IN OPPOSITION TO
PETITION FOR WRIT OF MANDAMUS1
Hearing Date:
Hearing Judge:
Time:
Place:
November 19, 2015

Hon. Teri L. Jackson
1:30 pm
Dept. 503
Date Action Filed:
December 26, 2014
JEREMY RICKS, TRACY KIRKHAM, and

JOE COOPER, and Does 6 to 10;
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Real Parties in Interest.
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The only correction contained in this brief is to the title of the brief on the caption page.
Opp. Brief; Case No. CPF 14-514060
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TABLE OF CONTENTS
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TABLE OF AUTHORITIES ......................................................................................................... iii

INTRODUCTION ...........................................................................................................................1
STATEMENT OF FACTS ..............................................................................................................1
I.
THE PROPERTY ....................................................................................................1
II.
THE PROJECT ........................................................................................................2
III.
CATEGORICAL EXEMPTION .............................................................................3
IV.
THE PLANNING COMMISSIONS CONDITIONAL USE

AUTHORIZATION. ................................................................................................4
V.
BOARD APPROVAL OF ADMINISTRATIVE CEQA AND CU APPEALS ......5
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STANDARD OF REVIEW .............................................................................................................6

ARGUMENT ...................................................................................................................................8
I.
THE PROJECT HAS NO SIGNIFICANT ENVIRONMENTAL IMPACTS. .......8
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1.
Construction of the Project Will Not Cause Significant Impacts. ...8
2.
The Project Will Not Significantly Impact Public Views from the
Coit Tower or Pioneer Park. ..........................................................10
3.
No Significant Geotechnical Impacts Exist. ..................................12
4.
The Driveway Placement Is Not a Significant Environmental

Impact. ...........................................................................................13
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II.
NO UNUSUAL CIRCUMSTANCES DEFEAT THE EXEMPTION. .................14
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1.
The Project is Not Located at a Sensitive Intersection. .................14
2.
The Project Is Consistent With City Policies Regarding Public

Views. ............................................................................................15
3.
The Project Sites Topography is Not Unusual. ............................16
4.
Petitioner Has Not Demonstrated that the Project Will Have

Environmental Impacts. .................................................................16
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III.
THE CITY IMPOSED NO MITIGATION MEASURES. ....................................17

A.
Because The Project Does Not Have a Significant Environmental

Impact, the Conditions Imposed Do Not Constitute Mitigation Measures.17
B.
The Boards Conditions Merely Ensure Compliance with State and

Local Law, Not Mitigation Measures. .......................................................18
1.
The Construction Conditions Are Merely Generally Applicable

Regulations. ...................................................................................18
2.
The Proposed Mirror and Signage at the Project Are Not

Mitigation.......................................................................................20
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C.
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The City Did Not Improperly Defer Geotechnical Mitigation of

the Project. .....................................................................................20
4.
Petitioners Cited Authorities Are Irrelevant. ................................21
The Boards Affirmance of the Categorical Exemption Did Not Depend

on Mitigation Measures. ............................................................................22
IV.
THE CITY CONSIDERED THE ENTIRE PROJECT. ........................................23
V.
THE CONDITIONAL USE PERMIT WAS PROPERLY ISSUED. ....................24
CONCLUSION ..............................................................................................................................25
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TABLE OF AUTHORITIES
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State Cases
Assn for Protection of Environmental Values in Ukiah v. City Of Ukiah
2 Cal.App.4th 720 ......................................................................................................................18
Azusa Land Reclamation Company v. Main San Gabriel Basin Watermaster
(1997) 52 Cal.App.4th 1165 .......................................................................................................23
Berkeley Hillside Preservation v. City of Berkeley
(2015) 60 Cal.4th 1086 ...................................................................................................... passim
Citizens for Responsible Equitable Envir. Dev. v. City of San Diego
(2011) 196 Cal.App.4th 515 ..................................................................................................6, 13
City of Pasadena v. State of California
(1993) 14 Cal.App.4th 810 ........................................................................................................23
Hines v. Cal. Coastal Com.
(2010) 186 Cal.App.4th 830 ...............................................................................................7, 9, 13
Laurel Heights Improvement Assn v. Regents of Univ. of Cal.
47 Cal. 3d 376 ..............................................................................................................................7
Lotus v. Department of Transportation
(2014) 223 Cal.App.4th 645 ......................................................................................................21
Perley v. Board of Supervisors of Calaveras County
(1982) 137 Cal.App.3d 424 .......................................................................................................12
Robinson v. City and County of San Francisco
(2012) 208 Cal.App.4th 950 ........................................................................................................6
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Salmon Protection & Watershed Network v. County of Marin

(2004) 125 Cal.App.4th 1098 ..............................................................................................17, 21
San Francisco Beautiful v. City and County of San Francisco
(1st Dist. 2014) 226 Cal.App.4th 1023 ..................................................................7, 9, 10, 17, 22
San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified
School District
(2006) 139 Cal.App.4th 1356 ......................................................................................................8
Topanga Assn for a Scenic Community v. County of Los Angeles
(1974) 11 Cal. 3d 506 ................................................................................................................25
Tracy First v. City of Tracy
(2009) 177 Cal.App.4th 912 ............................................................................................1, 18, 20
Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova
(2007) 40 Cal.4th 412 ..................................................................................................................6
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State Statutes & Codes

California Building Code Section 3306 .....................................................................................9, 19
Public Resources Code Section 21099(d)(1) .................................................................................10
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San Francisco Statutes, Codes & Ordinances

Administrative Code Section 31.08(a) ...........................................................................................24
Building Code Section 106A.3.2.6 ................................................................................................10
Building Code Section 106A.3.2.6.3 .............................................................................................10
Building Code Section 106A.4.1.4 ..........................................................................................12, 13
Building Code Section 3306.7 .......................................................................................................19
Planning Code Section 101.1 .............................................................................................10, 15, 25
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Planning Code Section 303 ............................................................................................................25
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Transportation Code Section 107...................................................................................................19

Transportation Code Section 501.....................................................................................................9
Transportation Code Section 501(d)(2) ...........................................................................................9
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Police Code Sections 2907-2909 .....................................................................................................9
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Regulations
CEQA Guidelines Section 15124 ..................................................................................................23
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CEQA Guidelines Section 15300.2(a) ...........................................................................................21
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CEQA Guidelines Section 15301(d) ................................................................................................3
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CEQA Guidelines Section 15303(b) ................................................................................................4

CEQA Guidelines Section 21168.5 .................................................................................................6
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INTRODUCTION
Petitioner, a group of neighbors who live nearby the site of a proposed small, 4 unit residential
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project on Telegraph Hill (the Project), fails to demonstrate that the City improperly issued a
categorical exemption for the Project. The record contains substantial evidence that no unusual
circumstances defeat the categorical exemption. In the urban context of San Francisco, neither the fact
that a high number of pedestrians visit nearby Coit Tower and Pioneer Park, nor the sites topography
are unusual. And as the record amply demonstrates, the Project will not affect public views from that
park.
Furthermore, the record shows that the Project will have no environmental impacts, and that
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therefore, no mitigation measures are appropriate or needed. To the contrary, the conditions the City
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imposed are merely requirements that the Project comply with generally applicable regulations and
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implement good-neighbor practices to address less-than-significant effects.

This Court should reject Petitioners Petition for a Writ of Mandamus.
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STATEMENT OF FACTS
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I.
THE PROPERTY
Real Parties in Interest, Jeremy Ricks, Tracy Kirkham and Joe Cooper (Real Parties or
Project Sponsor) propose to construct a small residential infill development and rehabilitate an
existing uninhabitable cottage on a largely vacant lot at 115 Telegraph Hill Boulevard (the
Property). (AR: 316, 264.4-264.15.)
The Property is a 7,517 square foot lot, located on the south side of Telegraph Hill Boulevard,
between Montgomery and Kearny Streets, and near to the top of Telegraph Hill and Coit Tower. (AR:
266.) It is located in an RH-3 Zoning District. (AR: 314, 319.) The site slopes downhill significantly
from east to west. (AR: 315.) It is bordered to the north by Filbert Street, which consists of a set of
concrete public stairs with no vehicle throughway, used by pedestrians to access the nearby Pioneer
Park and Coit Tower (the Filbert Steps). (AR: 266, 314-315.)
The surrounding neighborhood is developed with residential buildings, including many large
homes. (AR: 384.) Immediately east of the Property is a three-story-over-garage, 6,100 sf. residential
building containing three dwelling units at 109-111 Telegraph Hill Boulevard. (AR: 315). To the west
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is a two-story, 1,250 square foot building with two units at 381-383 Filbert Street, followed by a three-
story-over-garage single family home at 391 Filbert Street. (AR: 315). Both of these buildings are
also adjacent to the Filbert Steps. (AR: 261.3261.5, 315). South of the Project site are additional
two- and three-story-over-garage residential buildings. (AR: 315.)

The Property was once comprised of three separate lots containing five buildings, but except
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for the cottage, it has been vacant since 1997. (AR: 226, 1174-1184). As photos of the site show,
today the site is marked by overgrown vegetation and enclosed by a chain link fence. (AR: 264.12,
261.4, 315, 413.)
II.
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THE PROJECT
On August 12, 2013, representatives of Real Party Jeremy Ricks filed an Environmental
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Evaluation application with the San Francisco Planning Department (Department) in connection
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with the Project. (AR: 265.) The Project calls for the construction of a new three-unit, 15,554 square
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foot residential building containing a shared below-grade garage with three off-street parking spaces.
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(AR: 381.) In addition, the Project would include renovation of the existing uninhabitable cottage at
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the rear of the lot, resulting in a total of four dwelling units. (AR: 381, 264.1-264.15.)
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The new structure is designed to appear as three single-family homes, each less than 40 feet
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tall, which will step down the hill relative to its naturally sloping topography. (AR: 381, 261.20-
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261.22.) The Projects highest point would sit 462 below and to the west of the public viewing area
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in Pioneer Park. (AR: 401, 433.) The Projects height would decrease along the hill. The height of the
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eastern-most unit will be approximately 2 3 shorter than the adjacent building; the middle building
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segment would be shorter than the eastern-most unit; and the building segment to the west would be
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shorter than the middle unit. (AR: 386.) Each of the three new units would occupy only 2310 of
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frontage, consistent with the width of building facades found throughout the neighborhood, and would
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feature a modern design with a scale and massing compatible with other homes in the immediate area.
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(AR: 384, 264.1-264.15, 261.20-261.22.)
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To provide view corridors from the Filbert Street Steps and Telegraph Hill Boulevard, a
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minimum of three feet of clear space will be provided between each of the new units, and the faade of
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the western-most unit has been set back five feet from the west property line, to allow for a large view
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corridor between the Property and 381 Filbert Street. (AR: 263, 264.14.) Real Parties have committed
to working in good faith with the San Francisco Department of Public Works to develop a stewardship
and maintenance agreement for the landscaped area to the north of the Filbert Steps, adjacent to the
Property. (AR: 384.) The Projects below-grade garage will be accessed by a single curb cut along
Telegraph Hill Boulevard. (AR: 384.) These features are shown below (AR: 429):
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In connection with the Project, Real Parties developed a construction plan proposing several
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standard measures regarding construction activities. (AR: 321.) These measures included (i) providing
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a well-lit and ventilated pedestrian path or tunnel to maintain public access along the Filbert Steps
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during construction; (ii) permanently staging a flag person at the intersection of the Filbert Steps and
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Telegraph Hill Boulevard throughout construction; (iii) staging concrete trucks off-site at the
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intersection of Filbert and Kearny Streets, rather than on Telegraph Hill Boulevard, to avoid temporary
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lane closures; (iv) requiring dump trucks and delivery vehicles to use an on-site staging area to turn
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around, avoiding access to the Coit Tower lot; and (v) limiting deliveries to morning hours; (AR: 321,
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410, 2081-2082.) Several of these measures were noted on the Project plans. (AR: 410.)
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III.
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CATEGORICAL EXEMPTION
On May 9, 2014, following a thorough evaluation of the Project description and related
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materials, the Department determined that the Project is categorically exempt from California
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Environmental Quality Act (CEQA) review under Class 1: Existing Facilities, for renovation of the
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existing cottage (14 C.C.R. 1500 et seq. [CEQA Guidelines], Section 15301(d)), and Class 3: New
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Construction and Conversion of Small Structures, which allows exemption for projects constructing up
to six new units (CEQA Guidelines Section 15303(b)) (Cat Ex). The Cat Ex was amended and re-
issued twice, to reflect minor changes in the Project description; the final Cat Ex was issued on
September 3, 2014. (AR: 316.) The determination that the Project was exempt remained the same. (Id;
also AR: 70-76.)

The Projects Certificate of Determination of Exemption from Environmental Review stated
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that the Project would not cause a significant adverse impact upon any historic resource as defined by
CEQA. (AR: 70-74, 286-287, 319, 1069-1070.) The Certificate also stated that the Project would
have no significant geotechnical impacts. (AR: 72-73.) Specifically, it discussed site conditions and
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topography, noting that the Department had reviewed a geotechnical report prepared for the Project
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that included information gathered from a site visit and four soil borings.
The Cat Ex also noted that the proposed Projects construction activities would be coordinated
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with the San Francisco Department of Public Works, SFMTA, and the Transportation Advisory Staff
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Committee to ensure that construction activities are conducted in a manner that maintains circulation
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on public rights-of-way, to the maximum extent feasible, resulting in no environmental impacts.
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(AR: 73.) In addition, the Cat Ex concluded that any temporary, short-term, delay to vehicular or
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pedestrian travel would not be a significant impact. (Id.)
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IV.
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THE PLANNING COMMISSIONS CONDITIONAL USE AUTHORIZATION.

On July 17, 2014, the Planning Commission held a public hearing to consider the Projects
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Conditional Use (CU) application. Telegraph Hill Dwellers (THD) expressed concerns regarding
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the Projects scale, massing, and design, as well as alleged environmental impacts to public views,
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shadow, pedestrian safety, and geological conditions. They requested that the Commission require
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additional environmental review. (AR: 783-922.)
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Following a detailed discussion, the Commission continued the matter until September 11,
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2014, to allow time for the Real Parties to incorporate suggested design revisions. Real Parties then
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revised the Project to: (i) reduce the width of the building sections to create 3 clear spacing between
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each unit and an 8 3 view corridor; (ii) add additional setbacks, windows and decking to provide
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articulation and detail; (iii) reduce the overall height and area of each unit; and (iv) shift the garage
curb-cut east by 16 to further minimize any potential for pedestrian or vehicle conflict. (AR: 263.)
The Planning Commission approved the revised Project by a vote of five-to-two on September
11, 2014. (AR: 1125.20.) In connection with the CU, the Commission imposed several conditions of
approval. (AR: 404-409.) These included, among other standard measures, requiring (i) the general
contractor to ensure that construction workers park legally and not in the Coit Tower lot; (ii) the
project sponsor and construction contractor(s) to coordinate with the Traffic Engineering and Transit
Divisions of the San Francisco Municipal Transportation Agency (SFMTA), the Police Department,
the Fire Department, the Planning Department, and other construction contractor(s) for any concurrent
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nearby projects to manage traffic congestion and pedestrian circulation; (iii) that there be no queuing
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of construction trucks along Telegraph Hill Boulevard, and that all trucks waiting to unload material
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shall be staged at a location offsite; (iv) that the project sponsor shall post signs or other devices to
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alert pedestrians to vehicles exiting the garage; and (v) that the Project Sponsor install parabolic
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mirrors to enhance the view of drivers exiting the garage. (AR: 404-409.)
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V.
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BOARD APPROVAL OF ADMINISTRATIVE CEQA AND CU APPEALS

Petitioner filed appeals of both the Projects CU authorization and Cat Ex determination to the
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San Francisco Board of Supervisors on October 11 and October 14, 2014, respectively. (AR: 1543-
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1569, 1561-1648). The Board of Supervisors heard the appeals jointly at a noticed public hearing on
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November 4, 2014. (AR: 1015-1019.) Petitioner alleged that the Projects Cat Ex was improperly
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issued because the Project would result in potentially significant impacts due to unusual
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circumstances. (AR: 1026-1034, 1543-1560.) Petitioner claimed a number of environmental impacts
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regarding construction practices, vehicle and pedestrian safety, historic resources, and slope stability,
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but failed to provide any evidence supporting those claims. (AR: 1026-1034, 1543-1560.) Through
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both written submittals and testimony at the hearing, Department staff responded to each of
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Petitioners claims. (AR: 311-317, 754-782.) The Board of Supervisors then affirmed the Projects
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Categorical Exemption determination by a vote of seven-to-three, with Supervisor Campos excused.
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(AR: 47-50.)
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After affirming the Cat Ex, the Board voted to amend the CU Authorization by modifying and
expanding upon conditions of approval that had been included in the Planning Commissions motion,
reflecting construction staging procedures that addressed the interest ofall the parties and
representatives of the nearby Garfield Elementary School. (AR: 1115-1124.) These conditions
included project sponsor obligations to (i) provide a well-lit, naturally ventilated pedestrian tunnel
throughout Project construction along the Filbert Street stair frontage; (ii) provide a flag person at the
top of the Filbert Stairs at all times during construction to monitor and direct construction and
pedestrian activities; (iii) provide that trucks waiting to unload materials will use an off-site staging
location and limit the hours of delivery; (iv) provide detailed construction plans to various City
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departments; and (v) consult with Garfield Elementary regarding construction plans. (AR: 57-60.)
STANDARD OF REVIEW
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A governmental agency's determination that [a particular] project [is] exempt from
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compliance with CEQA requirements ... is subject to judicial review under the abuse of discretion
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standard in section 21168.5 of the California Environmental Quality Act (CEQA) (Robinson v. City
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and County of San Francisco (2012) 208 Cal.App.4th 950, 955 [internal quotation marks and citation
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omitted] (Robinson).) Such an abuse is established if the agency has not proceeded in a manner
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required by law or if the determination or decision is not supported by substantial evidence.
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(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th
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412, 426-27 (citations and internal quotations omitted).)
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Substantial evidence means enough relevant information and reasonable inferences from this
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information that a fair argument can be made to support a conclusion, even though other conclusions
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might be reached. (Citizens for Responsible Equitable Envir. Dev. v. City of San Diego (2011) 196
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Cal.App.4th 515, 522.) Thus, the Court must uphold the Citys determination that the Project qualifies
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for a categorical exemption as long as substantial evidence supports that determination, even if some
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evidence exists to support a different conclusion. Substantial evidence includes fact, a reasonable
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assumption predicated upon fact, or expert opinion supported by fact. Substantial evidence is not
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argument, speculation, unsubstantiated opinion or narrative, [or] evidence that is clearly inaccurate or
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erroneous. (Hines v. Cal. Coastal Com. (2010) 186 Cal.App.4th 830, 856-57 [citations and internal
quotation omitted].)
Once an agency determines that a project falls within a categorical exemption, the burden then
shifts to the challenging party to produce evidence showing that one of the exceptions applies to take
the project out of the exempt category. (San Francisco Beautiful v. City and County of San
Francisco (1st Dist. 2014) 226 Cal.App.4th 1012, 1013.)
Earlier this year the California Supreme Court clarified the standard of review that applies to a
claim that unusual circumstances precludes the use of a categorical exemption under CEQA
Guidelines Section 15300.2. (Berkeley Hillside Preservation v. City of Berkeley (Berkeley Hillside),
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(2015) 60 Cal.4th 1086, 1092). The Court established a two-step inquiry. First, a court determines
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whether substantial evidence supports the agencys determination that there are no unusual
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circumstances. This is essentially [a] factual inquiry Accordingly, the agency serves as the
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finder of fact and a reviewing court should apply the traditional substantial evidence standard. (Id. at
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p. 1114 [internal citations omitted].) This means all inferences and disputes in the record are resolved
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in favor of the agency, and the court must uphold the agencys determination if there is any
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substantial evidence, contradicted or uncontradicted, to support it. (Id.; Laurel Heights Improvement
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Assn v. Regents of Univ. of Cal., (1988) 47 Cal.3d 376, 393 [holding that the courts task is not to
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weigh conflicting evidence and determine who has the better argument or whether an opposite
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conclusion would have been equally or more reasonable].).
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Only if the court finds that substantial evidence does not support the agencys determination of
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no unusual circumstances does the court make a second inquiry. In that case, the court must then
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review the agencys determination that there is no reasonable possibility of a significant effect on the
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environment due to the unusual circumstance. For this second prong, the court applies the fair
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argument standard. (Berkeley Hillside, supra, 60 Cal.4th at p. 1115.) Under the fair argument
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standard, the agencys determination that the exemption applies must be upheld unless petitioners can
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show a fair argument that the proposed activity may have a significant environmental impact. (Id.)
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[T]o establish the unusual circumstances exception, it is not enough for a challenger merely to
provide substantial evidence that the project may have a significant effect on the environment. (Id. at
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p. 1105.) Rather, the challenger has the burden to establish unusual circumstances by showing that
the project has some feature that distinguishes it from others in the exempt class, such as its size or
location, or with evidence that the project will have a significant environmental effect. (Id.) In
other words, the challenger must demonstrate not just that the project could have a significant
environmental effect, but that the project differs from the general circumstances of the projects
covered by a particular categorical exemption, and that those circumstances create an environmental
risk that does not exist for the general class of exempt projects. (San Lorenzo Valley Community
Advocates for Responsible Education v. San Lorenzo Valley Unified School District (2006) 139
Cal.App.4th 1356, 1394.) If there is nothing unusual about the circumstances of a project, and it
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presents the same general risk of environmental impacts as the class of projects that the Natural
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Resources Agency has already determined will not have a significant impact, then the exception will
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not apply.
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The Citys determination easily survives review under those standards.
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ARGUMENT
THE PROJECT HAS NO SIGNIFICANT ENVIRONMENTAL IMPACTS.
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I.
As Petitioner concedes, the Project falls within the Class 1 and Class 3 categorical exemptions
set forth by the CEQA Guidelines. (Pet.s Br. at 9-10.) In fact, this Project is a textbook example of
the type of small, urban infill project those exemptions were meant to apply to. Petitioner fails to
demonstrate that the Cat Ex nevertheless was improper. As the Departments thorough analysis and
other substantial evidence in the record shows, the Project has no significant environmental impacts,
even absent the conditions imposed by the Planning Commission and Board of Supervisors.
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Construction of the Project Will Not Cause Significant Impacts.
As the Department determined, construction activities associated with the Project would not
have any significant environmental impact, at either the Project site or at Garfield Elementary School.
First, the removal of dirt and debris and other hauling to and from the Project site would not
constitute a significant environmental impact. Petitioner misunderstands the weight limits for trucks,
leading to a gross overestimate of the number of truck trips required for construction work. (AR: 1880
[alleging the Project would require 10,000 truck trips].) In fact, San Francisco Transportation Code
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Section 501 exempts construction trucks from the weight limit otherwise applicable on Telegraph Hill
Boulevard. (S.F. Transp. Code 501(d)(2).) The Project Sponsors representative testified before the
Board of Supervisors that, given this exemption, the number of truck trips required for both debris
hauling and other construction work would be about 8 percent of what the THD alleged before the
Board of Appeals. (See AR: 321, 1090.) Petitioner does not challenge that testimony. Moreover,
Petitioner provides no evidence that the truck trips will cause a significant impact.
Second, there is no significant hazard to pedestrians due to construction traffic. As a general
matter, all construction, including for this Project, must comply with all state and local code
requirements for pedestrian safety, including California Building Code Section 3306 (which sets forth
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requirements for walkways, barriers, and railings), and the San Francisco Municipal Transit
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Authoritys Regulations for Working in San Francisco Streets (commonly known as the SFMTA
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Blue Book) (8th ed., Jan. 2012). These regulations require contractors to provide adequate paths of
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travel along sidewalks, based on the volume of foot traffic; flag control of traffic to ensure safety
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while construction vehicles are entering and exiting a work site; and coordination between different
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contractors to ensure smooth traffic flow. (Blue Book at pp. 11-13.) Petitioner offers no evidence
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that, despite Projects required compliance with all of these standard safety measures, pedestrians will
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be unable to safely cross the street or the Project sites driveway during construction. (See San
18
Francisco Beautiful, supra, 226 Cal.App.4th at p. 150 [agency may rely on generally applicable
19
regulations to conclude a project has no significant environmental impact].) Substantial evidence
20
exists to support the Citys determination of no significant effect, and Petitioner offers no evidence to
21
the contrary. (See Hines, supra, 186 Cal.App.4th at pp. 856-57 [substantial evidence is not argument,
22
speculation, unsubstantiated opinion or narrative].)
23
Third, construction noise impacts would not constitute significant impacts because the Project
24
must comply with San Franciscos Police Code, which limits those impacts to less than significant
25
levels. For example, San Franciscos Police Code sections 2907-2909 set decibel limits for daytime
26
construction equipment noise, as well as a strict nighttime noise limit of 5 decibels of ambient noise,
27
the same limit that applies to other nighttime noise at residential properties. (See San Francisco
28
Beautiful, supra, 226 Cal.App.4th at p. 150.)

9
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Fourth, San Francisco Building Code 106A.3.2.6, the Citys Dust Control Ordinance,
imposes extensive construction dust control requirements for this Project. As for all projects with the
potential to create dust, the Project Sponsor must water all active construction areas sufficiently to
prevent dust from becoming airborne; wet sweep or vacuum the streets, sidewalks, paths, and
intersections during excavation and dirt-moving activities; cover and brace large stockpiles of
materials; and use dust enclosures, curtains, and dust collectors in the excavation area. (S.F. Building
Code 106A.3.2.6.3) These extensive requirements ensure that dust will not create a significant
environmental impact. (See San Francisco Beautiful, supra, 226 Cal.App.4th at p. 150.)
2.
The Project Will Not Significantly Impact Public Views from the Coit
Tower or Pioneer Park.
10
The Project will not result in any impacts to views, for several reasons. First, under a recently
11
adopted amendment to CEQA, aesthetic and parking considerations of residential infill projects within
12
transit priority areas, such as the Project, are no longer considered impacts under the statute. (See
13
Public Resources Code Section 21099(d)(1) [aesthetics and parking impacts of a residential, mixed14
use residential, or employment center project on an infill site within a transit priority area shall not be
15
considered significant impacts on the environment]; see also AR: 320.)
16
In addition, even if Section 21099 did not apply, there is no significant impact on public views
17
because, as the Planning Commission found, the Project does not obstruct public views. It is
18
consistent with Planning Code Section 101.1, which mandates that the Citys parks and open space
19
and their access to sunlight and vistas be protected from development:
20
23
The project includes the infill development of three new dwelling units on a
largely vacant lot in a residential neighborhood. The project will not adversely
affect any public parks or open spaces. It is located below Coit Tower and
Pioneer Park on Telegraph Hill, and will incorporate green rooftops to ensure
that the Project blends with the hillside when viewed from above. It will not
adversely affect Coit Towers access to sunlight or public vistas.
24
(AR 14). Petitioner includes a diagram in its brief that purports to show that the Project would
25
obstruct protected public views. (Compare Pet.s Br. at p. 22 with figure from AR: 1931.) Ironically,
26
the diagram proves just the opposite the Project does not obstruct public views from Coit Tower or
27
Pioneer Park. It may partially block some views from the Filbert Steps, in the area immediately
28
adjacent to the Project, but those views are not protected under the General Plan. (AR: 1078 [the
21
22
10
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General Plan and the Residential Design Guidelines do not protect private views. They also do not
protect views from the sidewalk through private property]; see also General Plan, Urban Design
Element, Policy 1.1; Policy 2.7; Residential Design Guidelines, p. 18 [explaining that views from
public areas, such as parks, are protected].)
The Planning Commission also found that the Project is consistent with the General Plan
Urban Design Element, and, more specifically, its policies regarding Telegraph Hill - including
provision of views of downtown. The Commission found that
8
9
10
The Project is compatible with Telegraph Hills special characteristics, in that

the buildings are designed to be consistent with the scale and massing of
surrounding properties [They] have been designed with a pedestrian scale and
texture, incorporating both landscaping and side setbacks along the west side of
each of the three new units, which provide for views of downtown.
11
(AR: 12 [emphasis added]; see also AR: 1074-75.) When asked at the Board of Supervisors hearing
12
if the Project violated General Plan policies intended to protect views, Department staff explained that
13
the General Plan and the Residential Design Guidelines do not protect private views, nor views from
14
the sidewalk through private property.
15
16
17
The General Plan does, however, protect the views from public vistas... It is our
opinion that both Pioneer Park and Coit Towers views of downtown are not
being obstructed by this Project. Since this Project is consistent with the height
of the adjacent neighbor, its actually shorter than the existing building to the
east, and it progresses down the hill as the General Plan instructs.
18
(AR: 1079 [emphasis added].). Further, Department staff explained that the Project was consistent
19
with the Urban Design Elements characterization of Telegraph Hill as an area with intimate
20
pedestrian scale and texture of streets and housing, with sudden and dramatic views of the Bay and
21
downtown through narrow openings. (AR: 1079, citing General Plan, Urban Design Element, [Policy
22
2.7].) This Project as designed, by providing the three foot setbacks between buildings and a five
23
foot side setback on the west side does just that, as directed by the General Plan. (AR 1079; 419.)
24
Petitioners make much of the fact that an individual Planning Commissioner expressed her
25
opinion that the Project may affect views. (Pet.s Op. Br. at 21.) But the opinion of an individual
26
commissioner is not determinative of the existence of potential impacts. To the contrary, courts have
27
upheld decisions that a project will have no significant environmental impacts despite dissenting
28
opinions by City officials, and even in the face of contrary findings and decision by a full planning
11
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commission. (See, e.g., Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 579 [affirming
adoption of mitigated negative declaration despite two dissenting votes by city council members];
Perley v. Board of Supervisors of Calaveras County (1982) 137 Cal.App.3d 424, 435-36 [approving
boards rejection of planning commissions determination that an EIR was required].)
In fact, as voluminous public testimony demonstrates, the Project will improve views from the
Filbert Steps, which currently look onto an abandoned, trash-strewn lot. (See, e.g., AR: 147 [referring
to site as an eye-sore], 150 [explaining that dumping, graffiti and loitering now occur on the vacant
lot], 152-53 [describing lot as a refuse collection point, empty and unattractive, and a fire
hazard]; AR: 122, 124, 135 [offering similar testimony].)2
10
11
In sum, substantial evidence supports the Departments determination that the Project will not
obstruct public views from Coit Tower or Pioneer Park.
3.
12
No Significant Geotechnical Impacts Exist.
13
Substantial evidence also supports the Departments conclusion that the Project would not have
14
significant geotechnical impacts. The first geotechnical report prepared for the Project found that risks
15
from liquefaction, surface rupture from earthquake faults, lateral spreading, densification and
16
landslides would be low, and contained specific recommendations to be considered during the DBI
17
permit review process. (AR: 1212-1221.) This report was prepared by a registered geotechnical
18
engineer at Earth Mechanics Consulting Engineers.
19
Furthermore, after a CU approval authorizes the overall approach and design a project, the
20
Department of Building Inspection will review building permit applications and may require
21
additional reports, surveys, and site monitoring to ensure slope stability. (AR: 758, 1069.) And as the
22
Department noted, the Property is subject to the Slope Protection Act of 2008, S.F. Building Code
23
Section 106A.4.1.4. This law requires the Project Sponsor to obtain approval of geological and
24
geotechnical reports regarding potential instability and to undergo design review for geological and
25
geotechnical issues. In addition, the DBI Director may require that DBIs Structural Advisory
26
27
28
Petitioner cites to the fact that the designer of Coit Tower in the 1930s may have expected a
southern view corridor. (Pet.s Br. at p. 21.) This is not determinative, nor does it mean that the
project significantly impacts views.
12
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Committee review the Project. If the Committee determines that there is a reasonable likelihood that
the proposed design and construction would result in unavoidable unsafe conditions, DBI must deny
the building permit. (See S.F. Building Code 106A.4.1.4; AR: 1069.)
The two letters by Lawrence Karp, which THD submitted in their appeal of the Cat Ex, do not
invalidate the Citys determination of no significant geotechnical effects. The fact that one expert
reached a different conclusion than the City does not invalidate the Citys determination. (See
Citizens for Responsible Equitable Envir. Dev., supra, 196 Cal.App.4th 515 at p. 522.) Moreover, the
supplemental Project geotechnical report prepared by Cotton, Shires and Associates (CSA)
underscores the fact that substantial evidence exists to support the Citys categorical exemption. (See
10
Hines, supra, 186 Cal.App.4th at pp. 856-57 [substantial evidence includes expert opinion supported
11
by fact]; AR: 2208-2218.)
12
First, the CSA report noted that the alleged removal of lateral and subjacent support for
13
adjacent structures was not a legitimate concern. CSA explained that this typical concern is
14
addressed later in the development process by the Citys Building Code, pursuant to which City
15
engineers will review proposed engineering plans to ensure adequate shoring and stabilization work.
16
(AR: 2212-2213, citing S.F. Building Code 106A.6 and 106A.4.1.4.4.) Second, CSA explained
17
that the alleged need for dewatering, which Dr. Karp opined could lead to destabilization, was
18
unfounded. Based on its investigation of twelve other sites at this elevation on Telegraph Hill, CSA
19
concluded there should be no groundwater table at this elevation. (AR: 2214-2215.) Thus, the Karp
20
letters do not defeat the categorical exemption. (Berkeley Hillside, supra, 60 Cal. 4th at p. 1105.)
21
22
4.
The Driveway Placement Is Not a Significant Environmental Impact.
Substantial evidence also supports the Planning Departments determination that the Projects
23
driveway is safe for pedestrians. For example, only three cars would use the garage (see AR: 788);
24
both a stop sign and a crosswalk are located at the driveway, requiring drivers to turn into the
25
driveway at low speed (AR: 1068); and drivers will both enter and exit the driveway facing forwards,
26
increasing visibility (AR: 796). Petitioner offers no evidence to the contrary.
27
28
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1
2
3
4
5
6
7
8
9
10
11
12
13
II.
NO UNUSUAL CIRCUMSTANCES DEFEAT THE EXEMPTION.

When issuing the Cat Ex, the City found that there was nothing unusual about the Project.
(AR: 330 [stating that there are no unusual circumstances surrounding the current proposal that
would suggest a reasonable possibility of a significant effect].) Later, Department staff rejected each
of Petitioners claims regarding the alleged unusual circumstances during the administrative appeals.
(AR: 314-338.)
Yet Petitioner continues to argue that the unusual circumstances precludes the Cat Ex
because the Projects location and site are unique. It posits: is there any other Telegraph Hill,
Pioneer Park, Coit Tower and Filbert Steps? (Pet.s Br. at p. 19.) This argument is a red herring, as
the same could be said of practically any site no two locations are exactly alike, and many are near
notable scenic or historic sites. The question, rather, is whether substantial evidence supports the
agencys determination that there are no unusual circumstances.
1.
The Project is Not Located at a Sensitive Intersection.
14
Petitioner claims the Project site is unusual because it is adjacent to a sensitive intersection
15
on a curvy road, near a transit stop, a pedestrian crosswalk, and a stop sign, in an area frequented by
16
visitors and tourists. (Pet.s Br. at p. 19.) But in San Francisco, these features are common. As
17
Department staff explained in their response to the Cat Ex appeal,
18
19
20
21
22
23
24
25
26
[I]n a city where tourism is one of three major industries (together with financial
services and technology), many roadways and sidewalks are heavily travelled,
whether by commuters or tourists. Thus, the intersection adjacent to the project
site is not unusual, but rather commonplace, given the context of San Francisco.
(AR: 318.) Staff added that the roadways and sidewalks that provide access to Coit Tower have been
designed to provide safe transportation to this tourist destination, like other roads that lead to other
heavily visited destinations in the City. (Id.) In addition, staff explained that locating a driveway near
that intersection was not unusual, because all sidewalks in San Francisco are in fact pedestrian
facilities; therefore, all driveways in the City cross the pedestrian right of way. (Id.; see also AR:
1067-68 [Department staff explaining that it is common for roadways and sidewalks in San Francisco
to be heavily travelled, and that the site was not unusual or dangerous].)
27
28
14
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Thus, the Citys determination that conditions in the intersection immediately adjacent to the
Project were not unusual, but rather commonplace, especially in the urban context of San Francisco, is
supported by substantial evidence. (See Berkeley Hillside, supra, 60 Cal.4th at pp. 11181119
[agencies have discretion to consider conditions in vicinity of proposed project in determining whether
unusual circumstances exist].)

2.
6
7
The Project Is Consistent With City Policies Regarding Public Views.
Petitioner next claims that the Projects impacts on public views create unusual
inconsistencies with mandates in the Citys adopted land use plans, specifically, the Planning Codes
Priority Policies and the Residential Design Guidelines. (Pet.s Br. at pp. 20-21.) Petitioner appears to
10
be particularly concerned that the Project will block views of downtown from the stairway and
11
landings in Pioneer Park. (Pet.s Br. at p. 20.) Their arguments fail, for several reasons.
12
First, alleged inconsistencies with the General Plan or other City policies do not constitute
13
unusual circumstances. (Berkeley Hillside, supra, 60 Cal.4th at p. 1105 [holding that a challenger
14
has the burden to establish unusual circumstances by showing that the project has some feature that
15
distinguishes it from others in the exempt class, such as its size or location, or with evidence that the
16
project will have a significant environmental effect]; see also AR: 1071 [Department staff explains
17
that inconsistencies with plans and policies are not in and of themselves an impact under CEQA.
18
Rather, we look at inconsistencies to determine whether there would be any physical environmental
19
effects].)
20
Second, the Planning Commission, which reviews a projects consistency with City policies
21
(see San Francisco Charter, Section 4.105; Planning Code Section 101.1) determined that the Project
22
was consistent with the General Plan, the Residential Design Guidelines, and the Planning Code. (AR:
23
4-46 [Planning Commission Resolution Approving the CU authorization].) The Commission found
24
that the project will not adversely affect any public parks or open spaces. It is located below Coit
25
Tower and Pioneer Park on Telegraph Hill, and will incorporate green rooftops to ensure that the
26
Project blends with the hillside when viewed from above. It will not adversely affect Coit Towers
27
access to sunlight or public vistas. (AR: 14 [reviewing the Projects compliance with Planning Code
28
Section 101.1]; see also AR: 12 [reviewing compliance with the Urban Design Element and stating
15
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that the Project was designed with a pedestrian scale and texture, incorporating both landscaping and
side setbacks along the west side of each of the three new units, which provide for views of
downtown]; AR 1079 [reviewing compliance with the Residential Design Guidelines and stating that
both Pioneer Park and Coit Towers views of downtown are not being obstructed by this Project.
Since this Project is consistent with the height of the adjacent neighbor, its actually shorter than the
existing building to the east, and it progresses down the hill as the General Plan instructs].)
7
8
9
The City's finding that there are no unusual circumstances regarding obstruction of public
views is supported by substantial evidence, and must not be disturbed.
3.
The Project Sites Topography is Not Unusual.
10
Lastly, Petitioner fails to demonstrate that the Projects topography is unusual, and that
11
therefore it would need a big excavation that would require dewatering, impair lateral and subjacent
12
support, and affect neighboring properties. (Pet.s Br. at 23.) As explained by the Planning
13
Department, the sites topography is not unusual in San Francisco. Slopes greater than 20% are not
14
unusual in San Francisco, a City with up to 48 recognized hills. Development on such lots is
15
routinely reviewed and construction undertaken in accordance with applicable City regulations
16
(and) the Department of Building Inspection (DBIs) permit review process. (AR: 318; see also AR:
17
757 [neither Appellant nor Mr. Karp have demonstrated that this depth [of excavation] is so unusual
18
that safety requirements could not be adequately addressed through DBIs permit review process];
19
see Berkeley Hillside, supra, 60 Cal.4th at pp. 1118-19 [agencies may consider conditions in a
20
projects vicinity to determine whether unusual circumstances exist].) As explained above, those
21
regulations ensure that construction of the Project will not have any environmental impacts.
22
4.
Petitioner Has Not Demonstrated that the Project Will Have

Environmental Impacts.
23
As discussed above, Petitioner has failed to establish that unusual circumstances exist due to
24
the Projects characteristics, such as size or location. Under Berkeley Hillside, a petitioner may also
25
demonstrate that unusual circumstances exist by showing that the project will have a significant
26
effect on the environment. (Berkeley Hillside, supra, 60 Cal.4th at p. 1105.) Petitioner here makes
27
only a half-hearted attempt to make this argument. (Op. Br. at 19.) But Petitioners arguments fail,
28
16
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because substantial evidence supports the Planning Departments thorough analysis and conclusion
that the Project would not have any significant impacts. (See Section I, above.)3
III.
THE CITY IMPOSED NO MITIGATION MEASURES.
Petitioner also conflates the concepts of mitigation and run-of-the-mill conditions on a project
approval that have nothing to do with CEQA compliance. Because substantial evidence supports the
Citys finding that this Project has no significant environmental impacts, no mitigation was required.
Moreover, the alleged mitigations are for the most part merely requirements that the Project Sponsor
comply with applicable laws and regulations. And the Board of Supervisors requirement of a mirror
and signs at the Project driveway are simply good-neighbor provisions that address less-than-
10
11
significant impacts, and therefore do not defeat the categorical exemption.4

A.
Because The Project Does Not Have a Significant Environmental Impact, the
Conditions Imposed Do Not Constitute Mitigation Measures.
12
Projects with no significant effect on the environment are categorically exempt from CEQA
13
review. (See San Francisco Beautiful, supra, 226 Cal.App.4th at p. 1032 [quoting Salmon Protection
14
& Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098, 1102].) If a project may
15
have a significant effect on the environment, CEQA review must occur and only then are mitigation
16
measures relevant. (Id.) Thus, if no significant environmental impact otherwise exists, any
17
conditions placed on the project do not constitute mitigation.
18
Petitioner concedes that the Project falls within the Class 1 and Class 3 categorical exemptions
19
under the CEQA Guidelines, as the City determined. (Pet.s Br. at p. 9-10.) Yet Petitioner argues
20
21
22
23
24
25
26
27
Petitioner appears to obfuscate the Berkeley Hillside test at p. 25 of its brief, stating that
CEQAs unique fair argument standard applies to the question of whether a project proposed for a
categorical exemption meets the unusual circumstances exception vis a vis environmental impacts.
This is precisely the position the Supreme Court rejected. (See Berkeley Hillside, supra, 60 Cal.4th at
p. 1105 [to establish the unusual circumstances exception, it is not enough for a challenger merely to
provide substantial evidence that the project may have a significant effect on the environment.
Rather, the challenger has the burden to establish unusual circumstances by showing that the project
has some feature that distinguishes it from others in the exempt class, such as its size or location, or
with evidence that the project will have a significant environmental effect].)
4
In fact, Petitioners claims are ironic, given that Telegraph Hill Dwellers, which appears to be
the main member of Protect Telegraph Hill, actively negotiated with Real Party in Interest for
conditions such as these during the administrative appeals at the Board of Supervisors. (AR: 1116.)
28
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without support that the conditions imposed by the Planning Commission and Board of Supervisors
were CEQA mitigation measures that were improperly incorporated into the project as part of the
categorical exemption. This argument ignores the fact that because the Project as originally proposed
had no significant impacts, no CEQA mitigation occurred. Substantial evidence, including the
Projects required compliance with state and local laws that address Petitioners concerns, supports the
conclusion that the Project as originally proposed would have no significant environmental effects.
Therefore, this Court should uphold the Citys determination.
B.
The Boards Conditions Merely Ensure Compliance with State and Local Law,
Not Mitigation Measures.
9
Furthermore, most of the conditions that Petitioner label as improper mitigation are really
10
nothing more than requirements that the Project Sponsor comply with generally applicable laws and
11
regulations and take other steps to address less-than-significant impacts. Compliance with City Codes
12
is not mitigation because, CEQA aside, the Project could not be approved absent compliance. (See
13
Assn for Protection of Environmental Values in Ukiah v. City Of Ukiah, (1991) 2 Cal.App.4th 720,
14
734-36 [EIR not required to address concerns about proper foundation construction and drainage,
15
because those concerns were already addressed by building code requirements]; Tracy First v. City of
16
Tracy (2009) 177 Cal.App.4th 912, 933 [city could rely on projects compliance with building code
17
standards for conclusion that it would not have a significant impact; hence no mitigation was
18
required].)
19
20
21
1.
The Construction Conditions Are Merely Generally Applicable

Regulations.
Petitioner mischaracterizes the construction-related conditions as unstudied construction
22
mitigation measures. But these conditions are not novel propositions that need to be studied. Instead,
23
they are typical construction management measures that, as Petitioner concedes, were part of
24
theproject plans. (Pet.s Br. at 12, AR 389.) Moreover, most of the construction-related conditions are
25
merely restatements of existing regulations that every project like this one would have to comply with.
26
First, the Boards requirement of a pedestrian tunnel along the Filbert Steps does not constitute
27
an impermissible mitigation. San Franciscos Building Code, which incorporates the California
28
Building Code, expressly requires a pedestrian walkway in front of this Project site. (S.F. Building
18
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Code 3306.2; AR: 1082.) In addition, the Building Code requires covered walkways under
circumstances like this one, where the distance from the construction to the lot line is less than five
feet and the construction will be over six feet high. (S.F. Building Code 3306.7 & Table 3306.1.)
The condition therefore merely reiterates that the Project Sponsor must comply with these provisions
of the Building Code.
Second, Petitioner inaccurately claims the requirement for a flag person at Filbert Street and
Telegraph Hill Boulevard during construction is a mitigation measure. (AR 390). In fact, SFMTA
regulations always require flag-persons where workers or equipment temporarily block a traffic lane
for access into and out of a construction area. (SFMTA Blue Book at 115; S.F. Transportation Code
10
11
107.) Thus, this condition simply reflects a generally applicable regulatory requirement.
Third, the Boards requirement that the Project Sponsor must work with various permitting
12
agencies to develop a construction management approach cannot be considered mitigation under any
13
reasonable reading of CEQA. As a matter of law, the Citys various departments review every project
14
that requires their approval. It is typical for these departments to coordinate in order to ensure that the
15
departments decisions are consistent. That coordination often occurs, as it would here, through the
16
Transportation Advisory Staff Committee, a multi-agency body that includes the Municipal Transit
17
Authority, the Police Department, the Fire Department, the Department of Public Works, and the
18
Planning Department. (AR: 61.2.) If inter-departmental coordination were a mitigation measure, no
19
project in the City requiring multiple approvals could obtain a categorical exemption.
20
Fourth, the requirement that Petitioner consult with Garfield Elementary and the San Francisco
21
Unified School District before finalizing its construction staging, traffic and truck route plans is
22
merely a more specific articulation of a generally applicable requirement for all projects near schools.
23
The SFMTA Blue Book requires that a contractor shall give advance notice of construction activities
24
to the school principal and administration at any adjacent school. The Contractor is responsible for
25
making arrangements with the school officials to maintain all school bus loading zones and passenger
26
loading zones. (SFMTA Blue Book at p. 18.) And as discussed above in Part I, the Project is subject
27
28
available at https://www.sfmta.com/sites/default/files/pdfs/BlueBook8thEd_Accessible.pdf.
19
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to strict noise, dust and safety regulations. Thus, the condition of approval merely reiterates these
requirements.
2.
3
4
The Proposed Mirror and Signage at the Project Are Not Mitigation.
Petitioner offers no support for its contention that the requirement of a mirror to aid drivers
exiting the Projects driveway and signs warning pedestrians of the driveway crossing are improper
mitigation measures. As discussed above, the driveway does not create a significant environmental
impact. Thus the Project Sponsors agreement to nonetheless install additional features to enhance
pedestrian safety does not constitute mitigation. (See Wollmer v. City of Berkeley (1st Dist. 2011) 193
Cal.App.4th 1329, 1353 [rejecting the proposition that a positive effort between developers and a
10
municipality to improve the project for the benefit of the communitysomehow becomes an evasion
11
of CEQA].)
12
13
3.
The City Did Not Improperly Defer Geotechnical Mitigation of the Project.
Petitioner improperly claims that, by relying on future permit review to ensure compliance
14
with the Citys Codes, the City improperly deferred geotechnical analysis of the Project. As explained
15
above, the Project must comply with the Municipal Codes, which are generally applicable standards,
16
not mitigation specific to this project. (See Pet.s Br. at p. 24 fn 2.) The City did not unlawfully defer
17
mitigation of geotechnical impacts.
18
Instead, the Planning Commission and Board of Supervisors simply recognized that DBIs
19
review of the Project for Building Code compliance, which necessarily would not occur until after the
20
CU authorization, will ensure that slope stability requirements are met. (See, e.g., AR: 50-51 [Cmsr.
21
Antonini stating that concerns about shoring and slides are the province of DBI. [I]ts part of the
22
process of building something that that has to be done. So anything thats built there has to follow that
23
order of business to be able to be safe.]; AR: 56 [Cmsr. Johnson stating that DPW and DBI, not the
24
Planning Commission, are responsible for making sure that its going to workphysically and sort of
25
technically]; AR: 1113 [Sup. Chiu stating that the Slope Protection Act sufficiently ensures that
26
slope issues are addressed safely and appropriately].) It is appropriate for an agency to rely on a
27
projects compliance with building codes and standards to conclude there will be no impacts; this does
28
not constitute mitigation. (Tracy First, supra, 177 Cal.App.4th at p. 933.)

20
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2
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5
6
7
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9
10
11
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15
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17
18
19
20
21
22
23
24
25
26
27
4.
Petitioners Cited Authorities Are Irrelevant.
Lotus v. Department of Transportation (2014) 223 Cal.App.4th 645 does not compel a
conclusion that the City improperly imposed mitigation measures. In that case, the Court of Appeal
held that, where an EIR had been prepared, the agency failed to first determine whether the project
(the improvement of a highway through an old growth redwood forest) created a significant
environmental impact on old growth trees. Instead, the agency simply required avoidance and
mitigation measures to address possible impacts. The court held that this approach sidestepped
CEQAs requirements that if a significant effect exists, the EIR must evaluate a range of possible
mitigation measures, including potentially feasible alternatives to the project, and that the agency must
adopt an enforceable monitoring program. (Id. at 656.)
Likewise, Salmon Protection and Watershed Network v. County of Marin (2004) 125
Cal.App.4th 1098 (SPAWN) does not apply to this case. In that case, the court held that Marin
County improperly relied upon mitigation measures in granting a categorical exemption for the
proposed construction of a home next to a creek in a designated stream conservation area. While the
construction of a single family home ordinarily is categorically exempt, the Guidelines contain an
exception for projects that may impact an environmental resource of critical concern. (CEQA
Guidelines 15300.2(a).) The County conceded that the project was in a designated area of
environmental critical concern, and its findings demonstrated that development on the site could
have adverse impacts on the habitat of threatened or endangered species. (SPAWN, supra, 125
Cal.App.4th at p. 1106.) Despite these findings, the County granted a categorical exemption that was
expressly founded on dozens of conditions that have been applied to enhance mitigations and reduce
to a minimum the possibility of any adverse environmental impacts. (Id. at p. 1107.) The Court
found that the County improperly relied upon mitigation measures. (Id.)
Unlike in Lotus and SPAWN, here the City made a determination that under CEQA, no
significant impacts would occur, separate from and prior to its consideration of conditions to address
concerns that do not trigger further CEQA review. Substantial evidence supports the Citys
determination that the Project is categorically exempt, and Petitioner cites no evidence to the contrary.
28
21
n:\land\li2015\150674\01054352.doc
The Project Sponsors agreement to take additional steps beyond what CEQA requires does not
constitute unlawful mitigation. (See Wollmer, 193 Cal.App.4th at p. 1353.)
C.
The Boards Affirmance of the Categorical Exemption Did Not Depend on

Mitigation Measures.
4
Conditions on a project endorsed by a governmental agency do not constitute mitigation, where
5
the record shows that those conditions were not the basis for the agencys conclusion that the project
6
qualified for a categorical exemption. (San Francisco Beautiful, supra, 226 Cal.App.4th at p. 1033.)
7
Here, as Petitioner concedes, the Project falls within the Class 1 and 3 categorical exemptions set forth
8
in the CEQA Guidelines. (Pet.s Br. At 9-10.) There is no merit to Petitioners contention that
9
mitigation measures were incorporated into the Project description in order to allow the Project to
10
qualify for a categorical exemption. In fact, the record demonstrates the opposite.
11
On November 18, 2014, the Board of Supervisors considered two issues with respect to the
12
Project: first, whether the Project was entitled to a categorical exemption, and second, whether to
13
approve a CU authorization for the Project. (AR: 1026 [President of the Board explaining that the
14
Board would first vote on whether to affirm the certification of the categorical exemption, and in the
15
event that the [categorical exemption] is affirmed, well then consider whether to affirm or overturn
16
the conditional use authorization].) The Board then passed Motion No. M14-189, affirming the
17
categorical exemption. (AR: 47-49.) Then, only after affirming the categorical exemption did the
18
Board consider imposing additional conditions on the Project, as part of the appeal of the CU
19
Authorization. During this second phase of the hearing, the City Attorneys Office publicly advised
20
the Board that any conditions of approval would be adopted through the Boards authority on appeal
21
of the conditional use authorization and are not to address significant impacts of the project under
22
CEQA. (AR: 1121.) In Motion No. M14-190, the Board then approved the CU with the conditions
23
now challenged by Petitioner.
24
The Boards conditions were not a basis for its affirmance of the Cat Ex. In San Francisco
25
Beautiful, supra, 226 Cal.App.4th at p. 1033, the Court of Appeal rejected an argument similar to
26
Petitioners. That case involved a project to install metal telecommunications cabinets in various
27
locations on sidewalks across the City. The project received a categorical exemption, which was
28
22
n:\land\li2015\150674\01054352.doc
appealed to the Board of Supervisors. The petitioners in that case contended that the project sponsors
agreement at the Board of Supervisors hearing to take additional steps to benefit local residents
constituted improper mitigation. These additional steps included, among other things, expanded
public notice and a website, consideration of alternative locations and screening for some cabinets, and
payment for the cost of graffiti removal. (Id.) The Court of Appeal held that [a]lthough members of
the Board of Supervisors expressed approval of [the] agreement to increase public outreach, the record
does not show that the agreement was the basis for the Boards conclusion that the project qualified for
a categorical exemption or that it constituted a mitigation measure for a significant effect on the
environment. (Id.) Likewise, in this case the conditions imposed by the Board were not the basis
10
for the Boards conclusion that the project qualified for a categorical exemption or that [they]
11
constituted [ ] mitigation measure[s]. (Id.)

Azusa Land Reclamation Company v. Main San Gabriel Basin Watermaster (1997) 52
12
13
Cal.App.4th 1165 and City of Pasadena v. State of California (1993) 14 Cal.App.4th 810 are
14
irrelevant. In Azusa, the public agency concluded that the project likely would have a significant
15
environmental impact absent mitigation measures, and then issued a categorical exemption after taking
16
into account those mitigation measures. (52 Cal.App.4th at pp. 1199-1201.) And City of Pasadena
17
merely states the general rule that a categorical exemption determination is made before formal
18
environmental review. (14 Cal.App.4th at p. 820.)
19
Petitioners approach would transform all generally applicable regulations into project-specific
20
mitigation measures. Yet if generally applicable regulations amounted to mitigation measures, then all
21
zoning, building, and safety regulations would be mitigation measures and every building project in
22
the State would require an EIR. That clearly is not the law.
23
IV.
24
THE CITY CONSIDERED THE ENTIRE PROJECT.

Furthermore, the City properly considered the entire project in affirming the Cat Ex. Petitioner
25
makes only a weak argument to the contrary, merely listing several minor features related to the
26
project and at least one nonexistent one.
27
CEQA requires that a project description contain no more extensive detail beyond what is
28
necessary to understand its potential environmental impacts. (CEQA Guidelines Section 15124.)
23
n:\land\li2015\150674\01054352.doc
Consistent with that mandate, Section 31.08(a) of the San Francisco Administrative Code requires a
project description with sufficient detail to convey the location, size, nature and other pertinent aspects
of the scope of the project as necessary to explain the applicability of a categorical exemption. The
project description in the Cat Ex satisfies his requirement.

The Project description states that the project would include replacement of a portion of the
5
6
concrete sidewalk, steps and retaining walls of Filbert Street. (AR: 71.) This refutes Petitioners claim
that the project description did not include improvements to the Filbert Steps to meet Department of
Public Works requirements and replacement and relocation of the steps. (Pet.s Br. at 16.) In
addition, contrary to Petitioners assertion, this work does not require a General Plan referral or major
10
encroachment permit. (See AR: 324.)

The Project description also states that the Project includes an approximately 160 square foot
11
12
(sf) demolition and exterior renovation of an existing 1000-square-foot cottage constructed in 1906
13
(AR: 70), despite Petitioners claim that the cottage renovation was not specified (Pet.s Br. at 16).
14
And the alleged reconfiguration of the sidewalk to relocate the stop sign and bus stop, which in fact
15
involves moving the stop sign one foot and leaving the bus stop in place, is not part of the Project
16
description but instead is governed by the Public Works Code. (AR: 321.)
Furthermore, descriptions of onsite and offsite staging areas are not required in the Project
17
18
description. As discussed above, the noise, safety, access and dust impacts of these staging areas are
19
governed by generally applicable state and local requirements. And Petitioners allegations that the
20
Project will remove part of a historic stone wall is simply inaccurate. (See AR: 28 [plans indicating
21
ROCK WALL TO REMAIN; AR: 319 [Planning Dept. determination that the wall will not be
22
removed and that no evidence exists that the wall is a historic resource].)
23
V.
THE CONDITIONAL USE PERMIT WAS PROPERLY ISSUED.
24
Lastly, Petitioner argues, almost in passing, that the Projects CU Authorization is
25
unsupported, because of the Projects alleged violations of General Plan and planning policies.
26
(Pet.s Br. at p. 25.)
27
As discussed above, both the Planning Commission and the Board of Supervisors granted the
28
Project a CU authorization, after finding that that it was compliant with all relevant General Plan and
24
n:\land\li2015\150674\01054352.doc
Planning Code policies. (AR: 10-13 [finding the Project complies with the Housing, Transportation,
and Urban Design Elements of the General Plan]; 13-14 [finding the Project complies with the Priority
Policies of Section 101.1 of the Planning Code]; 60 [Board of Supervisors incorporates Planning
Commissions findings by reference].) The Commission also specifically found that the Project
satisfied all the conditions set forth in Planning Code Section 303, which provides criteria for the
Commission to consider when granting a CU authorization. (AR: 8-10.) The Commission found that
the Project was necessary and desirable because it would provide much needed family-sized housing
in a residential neighborhood, on a lot that had long been vacant and that was a detriment to the
neighborhood and create[d] a gap in the urban fabric. (AR: 8.) Further, the Commission found that
10
the Project was consistent with the neighborhood uses, and the proposed design was compatible with
11
the immediate vicinity. (AR: 9; see also 1073-74 [the Project will improve a dilapidated vacant lot
12
with a well-designed, high-quality residential development].)
13
In sum, there is ample evidence in the record to support the issuance of the CU authorization.
14
This Court should ignore Petitioners request to set aside the CU. (See, e.g., Topanga Assn for a
15
Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514 [when reviewing an
16
adjudicatory decision such as the granting of a variance or the imposition of conditions on a project, a
17
reviewing court must resolve all reasonable doubts in favor of the local agencys findings and
18
decisions].)
CONCLUSION
19
20
For the reasons stated above, the City and Real Parties in Interest respectfully request that the
21
Court deny the Petition for Writ of Mandamus.
22
Dated: October 15, 2015
23
24
25
26
27
DENNIS J. HERRERA
City Attorney
ANDREA RUIZ-ESQUIDE
VICTORIA WONG
Deputy City Attorneys
DANIEL FRATTIN
REUBEN, JUNIUS & ROSE, LLP
By:___/s/ Andrea Ruiz-Esquide________

ANDREA RUIZ-ESQUIDE
By: ___/s/ Daniel Frattin_____________

DANIEL FRATTIN
28
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PROOF OF SERVICE
1
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8
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I, LAUREN SKELLEN, declare as follows:

I am a citizen of the United States, over the age of eighteen years and not a party to the aboveentitled action. I am employed at the City Attorneys Office of San Francisco, City Hall, Room 234, 1
Dr. Carlton B. Goodlett Place, San Francisco, CA 94102.
On October 15, 2015, I served the following document(s):
CORRECTED JOINT BRIEF OF CITY AND COUNTY OF SAN FRANCISCO AND REAL
PARTIES IN INTEREST IN OPPOSITION TO PETITION FOR WRIT OF MANDAMUS
on the following persons at the locations specified:
Susan Brandt-Hawley
BRANDT-HAWLEY LAW GROUP
P.O. Box 1659
Glen Ellen, CA 95442
Telephone: (415) 938-3900
Facsimile: (415) 938-3200
susanbh@preservationlawyers.com
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Attorneys for Petitioner

Protect Telegraph Hill
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in the manner indicated below:
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16
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22
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BY UNITED STATES MAIL: Following ordinary business practices, I sealed true and correct copies of
the above documents in addressed envelope(s) and placed them at my workplace for collection and mailing with
the United States Postal Service. I am readily familiar with the practices of the San Francisco City Attorney's
Office for collecting and processing mail. In the ordinary course of business, the sealed envelope(s) that I placed
for collection would be deposited, postage prepaid, with the United States Postal Service that same day.
BY PERSONAL SERVICE: I sealed true and correct copies of the above documents in addressed
envelope(s) and caused such envelope(s) to be delivered by hand at the above locations by a professional
is attached or
will be
messenger service. A declaration from the messenger who made the delivery
filed separately with the court.
BY ELECTRONIC MAIL: Based on a court order or an agreement of the parties to accept electronic
service, I caused the documents to be served electronically through File and ServeXpress e-service System in
portable document format ("PDF") Adobe Acrobat.
I declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct.
Executed October 15, 2015, at San Francisco, California.
/s/ Lauren Skellen
LAUREN SKELLEN
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1

DENNIS J. HERRERA, State Bar #139669

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

PROTECT TELEGRAPH HILL, an

Case No. CPF 14-514060

November 19, 2015

Date Action Filed:

December 26, 2014

JEREMY RICKS, TRACY KIRKHAM, and

Opp. Brief; Case No. CPF 14-514060

TABLE OF AUTHORITIES ......................................................................................................... iii

STATEMENT OF FACTS ..............................................................................................................1

THE PROPERTY ....................................................................................................1

THE PROJECT ........................................................................................................2

CATEGORICAL EXEMPTION .............................................................................3

THE PLANNING COMMISSIONS CONDITIONAL USE

BOARD APPROVAL OF ADMINISTRATIVE CEQA AND CU APPEALS ......5

STANDARD OF REVIEW .............................................................................................................6

THE PROJECT HAS NO SIGNIFICANT ENVIRONMENTAL IMPACTS. .......8

Construction of the Project Will Not Cause Significant Impacts. ...8

No Significant Geotechnical Impacts Exist. ..................................12

The Driveway Placement Is Not a Significant Environmental

NO UNUSUAL CIRCUMSTANCES DEFEAT THE EXEMPTION. .................14

The Project is Not Located at a Sensitive Intersection. .................14

The Project Is Consistent With City Policies Regarding Public

The Project Sites Topography is Not Unusual. ............................16

Petitioner Has Not Demonstrated that the Project Will Have

THE CITY IMPOSED NO MITIGATION MEASURES. ....................................17

Because The Project Does Not Have a Significant Environmental

The Boards Conditions Merely Ensure Compliance with State and

The Construction Conditions Are Merely Generally Applicable

The Proposed Mirror and Signage at the Project Are Not

Opp. Brief; Case No. CPF 14-514060

The City Did Not Improperly Defer Geotechnical Mitigation of

Petitioners Cited Authorities Are Irrelevant. ................................21

The Boards Affirmance of the Categorical Exemption Did Not Depend

THE CITY CONSIDERED THE ENTIRE PROJECT. ........................................23

THE CONDITIONAL USE PERMIT WAS PROPERLY ISSUED. ....................24

Salmon Protection & Watershed Network v. County of Marin

State Statutes & Codes

Public Resources Code Section 21099(d)(1) .................................................................................10

San Francisco Statutes, Codes & Ordinances

Building Code Section 106A.3.2.6 ................................................................................................10

Building Code Section 106A.3.2.6.3 .............................................................................................10

Building Code Section 106A.4.1.4 ..........................................................................................12, 13

Building Code Section 3306.7 .......................................................................................................19

Planning Code Section 101.1 .............................................................................................10, 15, 25

Planning Code Section 303 ............................................................................................................25

Transportation Code Section 107...................................................................................................19

CEQA Guidelines Section 15300.2(a) ...........................................................................................21

CEQA Guidelines Section 15301(d) ................................................................................................3

CEQA Guidelines Section 15303(b) ................................................................................................4

implement good-neighbor practices to address less-than-significant effects.

two- and three-story-over-garage residential buildings. (AR: 315.)

261.4, 315, 413.)

(AR: 384, 264.1-264.15, 261.20-261.22.)

also AR: 70-76.)

on public rights-of-way, to the maximum extent feasible, resulting in no environmental impacts.

pedestrian travel would not be a significant impact. (Id.)

THE PLANNING COMMISSIONS CONDITIONAL USE AUTHORIZATION.

additional environmental review. (AR: 783-922.)

BOARD APPROVAL OF ADMINISTRATIVE CEQA AND CU APPEALS

circumstances. (AR: 1026-1034, 1543-1560.) Petitioner claimed a number of environmental impacts

By:_/s/ Andrea Ruiz-Esquide______

By: _/s/ Daniel Frattin___________